1.00 Absentees, Estates Of

1.00.1

In General

Texas courts will adjudicate a person as missing, absent, or dead after a period of more than seven (7) years without any contact or communication, regardless of proof of death.

Texas law states that any person absenting himself for seven successive years shall be presumed dead unless it is proved that the person was alive within the seven-year period. See Tex. Civ. Prac. & Rem. Code Sec. 133.001)

This type of absentee or missing person is to be distinguished from one whose whereabouts are known, but who has remained away from a particular area or jurisdiction for some length of time. Simply being absent doesn't take away property rights.

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Power To Administer The Estates Of Missing Persons

(a) If an estate is recovered on a presumption of death under this chapter and if in a subsequent action of suit it is proved that the person presumed dead is living, the estate shall be restored to that person.  The estate shall be restored with the rents and profits of the estate with legal interest for the time the person was deprived of the estate.

(b) A person delivering an estate or any part of an estate under this section to another under proper order of a court of competent jurisdiction is not liable for the estate or part of the estate.

(c) If the person recovering an estate on a presumption of death sells real property from the estate to a purchaser for value, the right of restoration under this section extends to the recovery of the purchase money received by the person, but does not extend to the recovery of the real property.

See Tex. Civ. Prac. & Rem. Code Sec. 133.003.



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Which Statutes To Select

It is a well-settled doctrine that states may enact statutes providing for the administration of the estates of persons absent for an unreasonable length of time and that the validity of such statutes does not depend upon whether an absentee is in fact dead, but rather upon whether the statutes violate procedural due process.

The estate of a missing person or an absentee, even though the person has been absent and unheard of for a considerable period of time, cannot be administered and distributed unless the death can be satisfactorily proven.

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Administration Of The Estates Of Missing Person

The Family Court or Probate Court has jurisdiction and can appoint a receiver to protect a missing person's estate.  See Tex. Civ. Prac. & Rem. Code Sec. 64.101.

We require a court order as to placement of the proceeds from the sale of an absentee's property.

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Administration Under Decedents' Statutes

Administration and distribution of the estate of a missing person based upon the presumption of death arising from absence for the statutory period of time 7 years are not binding upon the absentee unless the absentee is in fact dead.  See Tex. Prac. & Rem. Code Sec. 133.001.  Accordingly, all the acts done by an administrator for a person supposed to be dead, but who in fact is alive, are null and void.

If person is dead, see administration of the estate in the Texas Estates Code.

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Refunding Bonds

This section intentionally deleted.

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Title Insurance

Do not attempt to insure any title affecting the estate of an absent or missing person UNLESS PRIOR SPECIFIC APPROVAL to this type of insurance has been obtained from a Texas Underwriter Counsel, and you have provided copies of the various court papers.

The issue here is that a court can order restoration of the estate to a person later proven to be alive, but a conveyance of real property to a bonafide purchaser is valid subject to the person's right to recover the proceeds.